Length Of Relationship Considerable Factor In Rape Case Over False Promise To Marry: Karnataka High Court

A single judge bench of Justice M Nagaprasanna partly allowed the petition filed by Mallikarjun Desai Goudar and quashed charges levelled under sections 376, 376(2)(n), 354, 406 and 504 of the Indian Penal Code. The court sustained the charges against him under sections 323 and 506 r/w 34 of the IPC.

The bench while quashing the charges of rape said,

“The consent in the case at hand is not once, twice or thrice; not for days or months; but for several years, five years precisely, as is narrated in the complaint as the two were in love. Therefore, for five long years, it cannot be said that the consent of a woman has been taken for having such instances, all along against her will.”

It added “It is the length of the relationship and the acts in such a period of such relationship between the two that takes away the rigor of ingredients of Section 375 of the IPC, for it to become an offence under Section 376 of the IPC.”

It was alleged by the victim that the two became acquaintances and it turned into a relationship and the relationship into sexual relationship. It was alleged that on the pretext of marriage, the petitioner had sexual intercourse with her and has later breached the promise of marriage and, therefore, it was contended that consent of the complainant was obtained by inducement on false promise of marriage.

Following which a crime came to be registered against the accused the police after investigation filed the chargesheet.

The petitioner submitted that he and the complainant were in love, wanted to get married, but in view of caste equations not meeting, the marriage could not take place despite hectic efforts on his part. It is then the complainant turns around and brands their relationship to be on the false pretext of marriage and alleges that he had sexual intercourse on that pretext and, therefore, it amounts to rape. It was said “It would not amount to rape by any stretch of imagination as it was consensual.”

The plea was opposed by the complainant claiming that if consent is obtained by false promise or false pretext that the accused would marry the complainant, it would amount to rape, as consent is not given by free will.

The bench on going through the complaint noted that the complaint indicates that the petitioner and the complainant were in love for 5 years and they had known each other for 12 years.

Then it observed “The narration in the complaint and the statement under Section 164 of the Cr.P.C., if read in juxtaposition, what would unmistakably emerge is, the petitioner and the complainant were in love and have had intercourse on several occasions for years. The statement clearly records that the petitioner had made hectic efforts to get married to the complainant. The family of both the petitioner and the complainant were known to each other. Talks of marriage did take place, but failed.”

Further it said “Though the complaint and the statement narrates that the petitioner has had sexual intercourse with the complainant, initially forcibly, but the said force cannot be seen to continue for five long years. The narration would clearly indicate that the relationship was consensual.”

It added “If it is consensual, it cannot be alleged that it would become an ingredient of rape under Section 375 of the IPC, for it to become punishable under Section 376 of the IPC.”

Rejecting the contention of the complainant that the consent of the petitioner is obtained on the false promise of marriage and therefore, it should be termed as a rape, the bench said “The submission is unacceptable, as the consent of a woman on a promise to marry is always an enigma.”

Referring to the Kerala High Court judgment in the case of Ramachandra Vs State of Kerala, the bench said, “For five long years, it cannot be said that the consent of a woman has been taken for having such instances, all along against her will.”

Accordingly it held “This Court has to step in exercise its jurisdiction under Section 482 of the Cr.P.C., to obliterate the crime registered against the petitioner for the offence of rape under Section 376 of the IPC, failing which, it would become an abuse of the process of law.”

Case Title: Mallikarjun Desai Goudar And State of Karnataka & ANR

Case No: CRIMINAL PETITION No.4761 OF 2022

Citation: 2023 LiveLaw (Kar) 102

Date of Order: 28-02-2023

Appearance: Advocate Chetan Desai for Petitioner.

HCGP K S Abhijith for R1.

Advocate Veena J a/w Advocate Lekha G D for R2.